Letters Letters
Taking a Chance on... Takings Chicago William Greider's "The Right and US Trade Law: Invalidating the 20th Century" [Oct. 15] purports to explain the close connection between my "radical" views of the "takings" clause and the current litigation under Chapter 11 of NAFTA, which, among other things, requires signatory states to pay compensation whenever their laws involve expropriation and acts "tantamount to expropriation" of the private property of citizens. His article is a troublesome mixture of truth and half-truth laced with selective quotations from our phone conversation. Greider portrays me as an extremist and antigovernment ideologue who invented the theory of regulatory takings in order to defeat environmental regulation. He is wrong on every count. The idea that regulations that stop short of seizure of property could count as takings goes back at least as far as Justice Oliver Wendell Holmes's 1922 opinion in Pennsylvania Coal v. Mahon, which held that a regulation of the use of private property could be treated as a compensable taking if it went "too far." Even Greider, one hopes, would regard it as a taking for the state to forbid a landowner to enter his own property or to use it for any purpose at all, even if it did not seize the land. Any constitutional provision worth its salt has to be read to cover not only the precise wrong it identifies (e.g., takings) but also the substitutes available to states to achieve the same unconstitutional end. Once it is accepted--as mainstream US law has long recognized--that some regulations are tantamount to takings, the question arises, Which ones and why? To sort out Holmes's tangled knot, I have long championed a three-part approach that is far less radical (and more coherent) than Greider's garbled account of my views suggests. The first point is indeed a departure from established law. It says that there is no principled way to decide that some limitations on land use are takings and others are not. Partial restrictions can come at all levels, from small to large, and the continuum cannot be broken at an arbitrary point simply by saying that some are too big and others too small. By the same token, however, the willingness to think of all government regulations as takings most emphatically does not mean that all should be invalidated unless explicit compensation has been paid. At no point, for example, does Greider so much as mention the central place that implicit in-kind compensation plays in my system as a means for reducing the instances for which compensation is required. Many broad-based regulations do not only hurt property owners; they also benefit them by imposing like restrictions on neighbors. These benefits should count as compensation under the takings clause. In general this approach tends to validate broad-based regulation that both benefits and burdens regulated parties in equal proportion but does not save the regulation that imposes (usually by design) far greater restrictions on some landowners than on others. Zoning laws, for example, can fall into either category. In some cases they impose uniform restrictions (on exterior design, for example) that benefit the regulated landowner, and these restrictions can be imposed without any cash compensation. More important is the scope of police power dealing with health and safety. Greider writes misleadingly that the police power was an invention of the New Deal, but that is sheer historical myth. The invocation of the police power long predates the New Deal, and its proper articulation occupies a central place in my own "radical" exposition of the takings clause. In the Lochner decision, which invalidated a ten-hour workday for some (but not all) kinds of bakers, the question before the Court was if this statute fell within the state powers to regulate private property (and restrict private freedom of contract) to preserve public health and safety. In my view the case was correctly decided on the ground that the statute was in reality only a disguised "labor" statute, designed not to protect health and safety but to place nonunion workers at a disadvantage against union workers, given that the ten-hour work restriction had a greater impact on their ability to do business. (Nonunion workers had one long shift from late afternoon to early morning and slept on the job in between. Union workers had two shifts.) The Nation itself vigorously defended the decision in a May 4, 1905, story titled "A Check to Union Tyranny." The result in Lochner is fully defensible without resorting to the woolly and overbroad standard Greider falsely attributes to me, namely, that the takings clause means that "government must pay those businesses or individuals whose property value is in some way diminished by public actions." Understanding the police power is critical in evaluating NAFTA's provision on expropriation and state actions "tantamount to expropriation." For the record, these are the first words I have ever written on NAFTA, and close readers of Greider's article will note that it's only by inference and innuendo that I am made to appear to champion the broad reading of Chapter 11. The blunt truth, however, is that business interests who have pressed for compensation under NAFTA have not consulted me on the question--not surprising, as, contrary to Greider's nasty innuendo, I think Chapter 11 is a major policy mistake if it is read to require compensation whenever a state seeks to regulate or limit pollution. All nineteenth-century police power cases (including Lochner) held that pollution and nuisance prevention fell within the proper scope of the police power. I have extensively defended and developed that notion of legitimate state power in all my published writings. That said, the only questions worth arguing are those about the means chosen to reach a legitimate end: Was the ban discriminatory because it applied only to foreign investment (in which case it should be struck down)? Or was it overbroad (in which case the state should be given a fair degree of latitude)? From what little I know of the facts, the MTBE ban seems entirely appropriate, unless there are less restrictive means that could protect state and local water supplies, which does not seem to be the case. One does not have to believe, however, that the state must have the police power to regulate all sorts of "social and economic" issues in order to check pollution. Had Greider asked me about the particular case, he would have gotten this same emphatic answer. He could have written a far more powerful piece on NAFTA had he stated that the most determined defender of the takings clause lines up foursquare against the business interests that have relied on Chapter 11 to gut the state police power. But that would have required him to work through the implications of my position, which is inconsistent with his muckraking ambitions. RICHARD A. EPSTEIN Deming, Wash. Isn't a logical extension of the "Epstein Doctrine" the position that activities by corporations having adverse impacts on the commonweal (health, environment, etc.) also constitute "takings"? And that government is the public's litigator? CHARLES KNAUFT III Oakland, Calif. Government regulations are a "taking"? I say let's go for it--if business costs to society are also deemed a "taking." Let's eliminate all government regulation of business, but let's also stop the socialization of the costs of doing business. If a business pollutes, let it be sued by the government, or private persons in the name of the public, for "taking" the public's clean air and water. If its production machines cause serious injury or death, the business has "taken" the value of that person's life or limb and so must compensate him or her. If a large retail chain puts local mom-and-pops out of business, the chain should compensate them. Fair's fair, right? CHARLES B. HOLZHAUER Tucson, Ariz. At just exactly what point will the trade-offs become unacceptable to the multinational corporate robber barons? Will they cease their depredations against the environment when it is so irreversibly compromised that even their own children begin to sicken and die? Under William Greider's able pen, the arcane and complex subjects of regulatory takings and NAFTA's Chapter 11 are rendered eminently understandable. MARY PETERSDORF GREIDER REPLIES Washington, D.C. Professor Epstein's letter contains valuable news in his announcement that he too considers NAFTA's Chapter 11 "a major policy mistake" that poaches illegitimately on the government. Since he is a leading legal theorist on the right, this might be useful to critics, and perhaps environmentalists can recruit him as an expert witness. But don't count on it. A careful reader will note that Epstein's lawyerly style sprinkles dangling qualifiers and escape hatches throughout his assertions. When I asked him about Chapter 11, he brushed the question aside (then went off on the trade lawyers who--"talking about my work behind my back"--failed to consult him). Who knows, maybe my article persuaded him to distance himself from the Chapter 11 controversy, lest it drag down his own theory. Epstein complains that I garbled the meaning of his doctrine. But I am not alone. When we spoke, he told me, "One of the dismaying things about the debate is that none of my opponents get my position right. In fact, most of my supporters don't get it right." Of course my article quoted Epstein selectively--how could it not?--but I doubt that printing his extended remarks would improve the portrait. "I'm not a zero-government guy. I'm a limited-government guy," he explained in our interview. "Once you allow any form of income redistribution to take place from any individual or group to any other for any reason the state thinks appropriate, then the game of limited government is over." "I am a fierce defender of the yellow-dog contract." "I want to undo the administrative state to the extent I think it's an instrument of faction and wealth redistribution without any productive increase." I described his theory as "radical" and "reactionary." I did not call him an "extremist." I did not say the police power was an "invention" of the New Deal, only that the Supreme Court reinterpreted the doctrine to justify the New Deal's economic and social regulation. What Epstein calls "sheer historical myth" is the standard understanding among legal scholars, including conservatives. Epstein seems anxious to detoxify the most provocative elements in his theory by portraying his purpose as unexceptional reform--correcting certain logical anomalies in the constitutional meaning of "takings." The Fifth Amendment makes sense, he reasons, only if the requirement to compensate property owners is extended to cover partial injury from regulatory intrusions. Invoking Justice Holmes as his antecedent may be read as an inside joke--Holmes was among the progressive jurists who struggled many years to undo the property-first Lochner era that Epstein wishes to restore. More to the point, the Supreme Court, even the present one, has adhered to a contrary understanding, directly expressed in the Rehnquist Court's 1993 Concrete Pipe decision: "The mere diminution in the value of property, however serious, is insufficient to demonstrate a taking." If Epstein's logic is so straightforward, why would the Justices be obtuse? Perhaps because they recognize the profound upheaval in governance that would result if the Court consecrates his theory. The federal judiciary, as even Epstein obliquely acknowledges, would be picking and choosing which zoning laws are legitimate. Furthermore, as dissenting Justice John Paul Stevens observed in the Palazzolo case this past summer, an Epstein takings victory for property owners requiring government compensation would constitute "a tremendous--and tremendously capricious--one-time transfer of wealth from society at large to all those individuals who happen to hold title to large tracts of land at the moment this legal question is permanently solved." It seems a bit late to try to sanitize the implications. Epstein's protestation that his theory holds no threat to environmental laws involves one of those points neither his supporters nor his critics seem to get right, since they believe otherwise too. Both sides know that most of the domestic takings cases are in fact aimed at environmental regulation. Many are further aware of the disingenuous wrinkle at the core of Epstein's argument. Pollution laws are justifiable government action, he contends, so long as they are based on common-law nuisance doctrine--one property owner may not do harm to neighbors. Only, as Epstein assuredly knows, none of the major US environmental laws derive from the nuisance premise, because that would subject enforcement to an impossible thicket of litigious claims over who injured whom. Science knows that rising air pollution will cause more asthma victims, but proving which polluting factory caused someone's illness is an evidentiary test designed to defeat the objective. Likewise, wetlands are protected under the Clean Water Act not for aesthetic reasons, as he supposes, but because science knows the restorative, purifying powers of shallow marshes. Epstein followers like Edwin Meese call them "landing fields for ducks" and think developers should be compensated for not paving over this vital public-health resource. Epstein mentions his in-kind compensation scheme to show he is a sensitive social thinker. Property owners who benefit from public regulation, he suggests, should have that gain deducted from their injury claims. But why stop there? Why not send a bill to the farmer whose land is suddenly made more valuable because government built a new highway alongside it? Perhaps we should require the wealthholders to pay more for the Pentagon budget, since military protection disproportionately benefits those with greater assets. These are intriguing questions, but the subtext of Epstein's logic is the familiar market fixation of the Chicago school. Society's collective actions are to be broken down into a labyrinthine accounting system of individual gain and loss. This would make new work for lawyers and accountants. It would also further cripple government, which is the professor's main idea. Finally, the modern regulatory state is profoundly flawed and often ineffective, though not for the reasons Epstein cites. Major regulatory agencies are captured by their regulated industries. Laws are written with purposeful vagueness and loopholes, which will guarantee delayed enforcement often for decades. Business interests mobilize resources to stymie what the public seeks. Epstein would perhaps blame "factions" and say this is another reason to return to limited government. As I have written for many years, progressives ought to acknowledge the regulatory breakdowns more candidly and begin the search for new legal doctrine and governing mechanisms that might restore health to the defense of the common interest. That task is very difficult, I concede, while the right wing persists energetically in trying to invalidate what was accomplished in the twentieth century. WILLIAM GREIDER
Nov 1, 2001 / William Greider and Our Readers
Letters Letters
MUDDLED NATION New York City On October 11, an alliance of Latinos, blacks and union members came close to a historic victory in New York. Alas, media rang...
Oct 25, 2001 / Our Readers
Letters Letters
TERRORI$T CA$H--$TAY$ CLEAN St. Clairsville, Ohio Lucy Komisar's June 18 "After Dirty Air, Dirty Money," on money-laundering [posted on the Nation web...
Oct 18, 2001 / Roane Carey and Our Readers
The Left Debates September 11 The Left Debates September 11
Letters Letters
UNICEF AND TEXTBOOKS IN PALESTINE Jerusalem Fouad Moughrabi's "Battle of the Books in Palestine" [Oct. 1] incorrectly states that UNICEF evacuated its staff ...
Oct 11, 2001 / Fouad Moughrabi and Our Readers
Letters Letters
WE SHINE FOR ALL Chicago Your magazine remains a beacon of hope for all of us, even those who revile you for your progressive values--because we all lose...
Oct 4, 2001 / Our Readers
Haunted by the Cold War Haunted by the Cold War
Haunted by the Cold War We regret that space considerations permit us to print only a few of the many letters we received on Martin Duberman's "A Fellow Traveling," ...
Sep 27, 2001 / Victor Navasky, Martin Duberman, and Our Readers
Send in the Clones… Send in the Clones…
Woods Hole, Mass. Katha Pollitt is my favorite Nation columnist, but guess what, Katha, you've got my objections to cloning embryo stem cells all wrong ["Sub...
Sep 20, 2001 / Katha Pollitt and Our Readers
Letters Letters
ALIEN NATION New York City There's only one explanation for your mystifying claim, in the July 23/30 "In Fact..." column, that "the rebates, unlike the broader tax cut plan, are progressive; everyone who pays taxes gets virtually the same amount": Space aliens must have kidnapped the Nation editorial board and replaced it with the editorial board of the Wall Street Journal. True, the tax rebates are marginally less regressive than the rest of the Bush tax cut package. But that certainly doesn't make them anything near progressive. First, the rebates are based on federal income taxes only; therefore, countless low-income Americans who pay significant federal payroll taxes, but not income tax, will receive no rebate. Second, as has been documented by Citizens for Tax Justice, an additional 51 million low-income Americans who do pay federal income taxes will still receive no rebate or only a small one. Twenty-six percent of taxpayers--34 million--will receive no rebate, while another 13 percent--17 million--will receive a rebate of only about half the amount advertised. Thus, we must protest the tax cuts by donating the funds to progressive groups, particularly those that fight the poverty faced every day by the families not receiving rebates. I also endorse your readers' suggestion of donating the money to The Nation, assuming, of course, that the space aliens have returned your editors. JOEL BERG New York City Coalition Against Hunger The rebates, originally a Democratic idea for dealing with the economic slowdown, give the same $300 to someone with a taxable income of $6,000 as to someone with taxable income of $600,000. That seems pretty progressive to us. We do, however, agree that we shouldn't have said every taxpayer will get virtually the same amount, as there are still many people who fall below the $6,000 level (thanks for providing us with the alien defense). Payroll taxes--which all workers pay to fund Social Security--are separate from income taxes. While justice would indeed lie in giving back some of that money and instead fully funding Social Security by removing the current cap on taxable earnings, at this moment such a proposal would probably only add to the deceitful hype surrounding Social Security privatization. --The Editors AND SPEAKING OF REBATES... Baton Rouge, La. An hour ago I spent the last of my tax refund check: I got my wife a manicure. I stayed in a mediocre hotel for a couple of nights, bought a couple of CDs on sale and had a great time at a local casino! Wow! It's gone. I could have helped pay for an elderly neighbor's medical expenses, supported the local homeless shelter, bought new books for the school library, but I didn't. I could have done any of the things federal and state governments do for the public good, but like most Americans I didn't. When I think of all the great things our money in aggregate could have accomplished, I feel sick about how I and most Americans trickled away our measly payoff. George W. Bush could have done so many noble and innovative things with these funds--but he didn't. LEE ROZELLE STRENGTHENING AMERICA'S FAMILIES New York City Judith Stacey, in "Family Values Forever" [July 9], describes me and my colleagues at the Institute for American Values as leaders of a "neo-family values movement" whose philosophy in the 1990s "triumphed over the religious far right, on the one hand, and progressive family politics on the other." And under Bush, Stacey argues, our movement is "prospering" and even "busting out all over." Stacey's infatuation with our little group goes back years. In 1994, in Social Text, she announced that an institute-led "revisionist campaign for family values has flourished under Democratic skies." Unlike the efforts of "right-wing Republicans and fundamentalist Christians," the institute-led campaign "has an explicitly centrist politics, rhetoric, and ideology. A product of academicians rather than clerics, it grounds its claims in secular social science rather than religious authority, and eschews anti-feminism for a post-feminist family ethic." In 1997, in Family Relations, Stacey worried at length that "the IAV and its associate organizations have been remarkably successful in attracting favorable media coverage." In 1998, in Footnotes, she fretted, "During the past decade the Institute for American Values has waged a vigorous, influential political campaign for neoconservative 'family values' while successfully representing itself as 'nonpartisan.'" During this time, Stacey and others formed a group called the Council on Contemporary Families, in effect named after the Institute's Council on Families, and intended by their own admission to function as a kind of anti-Council on Families in the public debate. While I am flattered by this attention, and while I sometimes show Stacey's writings to others in order to demonstrate our group's amazing prowess, the truth is, Stacey is missing the point. As an analyst, her fundamental weakness is the tendency to view the world in conspiratorial terms. In attributing nearly everything that she thinks is wrong with today's family debate to one little group--the members of which most people, except for Judith Stacey and her friends, have never heard of--Stacey is in effect blinding herself to the real causes of contemporary social change, including changes in public opinion about marriage and families. Besides the fact that we are, in her eyes, too influential, what seems to upset Stacey most is that we are ideologically hard for her to define (thus her shifting and consistently awkward formulations, such as "neo-family values"), since we bring together a very diverse group of scholars and leaders. Also in the July 9 issue, Katha Pollitt brings up again her longstanding complaint that Cornel West, widely viewed as a man of the left, is associated with the institute. Stacey and Pollitt are outraged that some of us won't stay safely put inside the tiny ideological boxes they've constructed for us. Our most recent public statement, Watch Out for Children: A Mother's Statement to Advertisers, which critiques contemporary commercial advertising, was co-signed by Marian Wright Edelman of the Children's Defense Fund. Edelman was also an original member of the institute's board of directors. Do Stacey and Pollitt want to excommunicate her as well from their constantly shrinking church? Before founding the institute, I was a Saul Alinsky-inspired community organizer, and before that, a VISTA volunteer. I am a lifelong Democrat. I have never, to the best of my memory, described myself as a "conservative," neo or otherwise, or as in favor of a political campaign called "family values," neo or otherwise. All of those terms are just Stacey calling people names. (Her description of Linda Waite of the University of Chicago, a liberal feminist professor of sociology who favors same-sex marriage, as a "neo-family values author" is so crude as to be comical.) Regarding the status and future of families, there will always be clashes of opinion on specific issues, but the underlying question for progressives, if I may be so bold, is whether we believe, with Stacey, Pollitt and about two other Americans, that strengthening marriage and family life is almost by definition a bad thing, or whether we think that it might be a good thing, especially for children. DAVID BLANKENHORN, president Institute for American Values STACEY REPLIES Los Angeles David Blankenhorn misreads political differences for personal ones. He mistakenly claims that the marriage movement troubles me because I cannot pigeonhole its ideology. On the contrary, I object to the profoundly discriminatory and antidemocratic character of the policies it promotes. Despite the presence of some well-intentioned individuals, the marriage movement, as my article documented, fosters economic, social and legal discrimination against all single adults as well as cohabiting couples and their children. Blankenhorn, for example, relentlessly extols the personal and social benefits of marriage but never advocates extending these privileges to same-sex couples. He exalts the two-parent family but belittles lesbian co-mother families for committing the sin of "radical fatherlessness." After my Nation article appeared, these political differences took on even greater urgency when the newly formed Alliance for Marriage launched a national campaign for a constitutional amendment to prevent any state from extending the benefits of marriage, or even of civil unions, to same-sex couples. Far from believing, as Blankenhorn charges, that "strengthening marriage and family life is almost by definition a bad thing," I favor policies that strengthen successful families for everyone, not just for heterosexuals, the affluent or those who are allowed and choose to marry. The marriage movement insists that one size and shape of family fits all and implies that those who do not agree should be content to wear rags or to remain in the closet. In contrast, groups like the Council on Contemporary Families seek to improve the fabric of family relationships for all people without dictating a uniform they have to wear. JUDITH STACEY U2, BRUTE? Denver, Colo. Salman Rushdie's gushy, giddy paean to U2, "The Ground Beneath My Feet" [July 9], is by far the worst thing I have ever seen in your magazine. It's quite a U-turn for this "edgy" Mohammed-defiler; perhaps a new career as a writer for People magazine will be waiting for him after this piece. Thanks for showing that, yes, liberals can be just as sophisticated in their pop-culture-artifact consumption as, well... the members of any early-nineties fraternity house. U2 sucks. JONATHAN ARMSTRONG Berkeley, Calif. Kudos for publishing Salman Rushdie's reflections on U2. In doing so, you have tapped into that most vital market segment: the 20somethings of America. Within moments of reading the piece, this 25-year-old jumped on his DSL line and alerted a fellow 20-something U2 fan (and Nation reader) in Los Angeles. I expect the e-mail chain to continue. While I applaud this careful surfing of pop culture, a warning: If you publish a Christopher Hitchens thought piece on the Back Street Boys or Britney Spears, I will cancel my subscription. SANJEEV BERY AUTHOR! AUTHOR! SEXY BEAST! Los Angeles It's astonishing that so literarily hip a publication as The Nation would publish a rave review (Carl Bromley, "The Limeys") [July 9] of a film (Sexy Beast) without once mentioning the names of the fellows who wrote the script (Louis Mellis and David Scinto). By making the ubiquitous, knuckleheaded error of assuming that the director of the film is per se its author, you join the same criminal class as (I shudder to utter its name) the Los Angeles Times. Is this really the company you want to keep? MONTE MONTGOMERY BROMLEY REPLIES Queens, N.Y. Monte Montgomery is to be congratulated for unmasking the criminal conspiracy that my comrades and I are involved in. Our organization had created a number of anti-George Bush, nonprofit shakedown operations (all concerned Nation readers should have received our solicitation by now--and, by the way, thanks) as a collective front for our diabolical ambition: To use tax rebate money sent to The Nation to erect a statue of Andrew Sarris, who popularized the auteur theory in America. Our demise, however, means that Montgomery--a screenwriter by trade--and his colleagues will no longer be able to hide behind the defense that the reason the film they wrote stank was the director or the studio. In my own miserable defense: In my review I describe Sexy Beast as "the heist movie that Harold Pinter never got around to writing." I can't imagine higher praise for the (albeit unnamed) screenwriters. CARL BROMLEY SLOW FOOD IN AMERICA In response to Alexander Stille's cover story on the emerging Slow Food movement in Italy [Aug. 20/27], we've had many requests for information on how to contact the movement on these shores. Here are its coordinates. Phone: (212) 988-5146; e-mail: [email protected]; web: www.slowfood.com.
Sep 13, 2001 / Our Readers
Letters Letters
IF I HAD A HAMMER... Bellevue, Wash. I agree with Katrina vanden Heuvel on the necessity of building a better infrastructure to combat the right-wing...
Aug 23, 2001 / Katrina vanden Heuvel, Victor Navasky, and Our Readers